THE BASICS OF THE INSANITY DEFENSE. Joseph A. Smith. defense is still used in criminal trials today. All but four states, Kansas, Montana, Idaho, and

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1 THE BASICS OF THE INSANITY DEFENSE Joseph A. Smith Although not as common, or effective, as it may seem on TV or in movies, the insanity defense is still used in criminal trials today. All but four states, Kansas, Montana, Idaho, and Utah, allow the insanity defense in criminal trials. However, the standard for proving the defense varies from state to state, and the chances of success with an insanity defense are relatively low. For a defendant to succeed on an insanity defense, he must establish that his insanity resulted from a mental disease, defect, or disorder. See McNeil v. United States, 933 A.2d 354 (D.C. 2007). The decision as to whether a defendant was insane at the time of the crime, and therefore not guilty by reason of insanity, is one made by the jury or trier of fact. See Christian v. Commonwealth, 202 Va. 311 (1960). Because insanity is an affirmative defense, the burden is on the defendant to affirmatively raise the issue. See McCulloch v. Commonwealth, 29 Va. App. 769 (1999); see also Taylor v. Commonwealth, 208 Va. 316 (1967); Herbin v. Commonwealth, 28 Va. App. 173 (1998). Virginia, Maryland, and the District of Columbia, like a majority of jurisdictions, place the burden of proof on the defendant to prove he was insane at the time of his 40

2 crime by a preponderance of the evidence. See Herbin, 28 Va. App. 173; Patton v. United States, 782 A.2d 305 (D.C. 2001). This shifting of the burden of proof is a change that several states adopted following the John Hinckley trial in 1982 in which he was found not guilty by reason of insanity. To survive a motion for directed verdict on the issue of insanity, and have the issue go before the jury, the defendant must present prima facie case of insanity. McNeil, 933 A.2d at 364. To meet this standard the defendant must present enough evidence to meet one of the three tests used for determination of sanity. The three different tests used to determine whether an individual was insane at the time he committed a crime are the M Naghten Rule, the irresistible impulse test and the Model Penal Code or substantial capacity test. The first test, the M Naghten Rule, requires a defendant to show either that he was unable to distinguish right from wrong or that he did not understand the nature, character, and consequences of his actions. See Price v. Commonwealth, 228 Va. 452 (1984); Herbin, 28 Va. App The second possible test is the irresistible impulse test. Under the irresistible impulse test, the defendant must show that even if he was able to understand the nature, character, and consequences of his actions, his mental illness rendered him unable to control his actions or conform his conduct to the law. See 41

3 Davis v. Commonwealth, 214 Va. 681 (1974); Thompson v. Commonwealth, 193 Va. 704 (1952). The third test, sometimes referred to as the substantial capacity test, was established in the Model Penal Code and holds that a defendant is not responsible for his criminal conduct if at the time of the act he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law as a result of mental disease or defect. See Md. Code Ann., Crim. Proc (2012); Howard v. United States, 954 A.2d 415 (D.C. 2008). Because a defendant s insanity defense rests on whether he can show that he has a mental disease, defect, or disorder, expert testimony is essential. See McCulloch, 29 Va. App. at 775. Mental disorder is generally defined as a behavioral or emotional illness that results from a psychiatric or neurological disorder. Md. Code Ann., Crim. Proc (2012). While a mental disease or defect is considered a disorder that substantially impairs the defendant s capacity to understand or appreciate his conduct, this can include psychotic disorders or mental retardation. While a lay witness may be able to testify as to the defendant s demeanor, they cannot express opinions as to the existence of any mental disease or defect. McCulloch, 29 Va. App. at 775. Therefore, in order to establish that a defendant suffered from the necessary mental 42

4 disease or disorder to render him insane at the time of the crime, he must present expert medical testimony on the issue. See Riggleman v. State, 364 A.2d 1159 (Md. Ct. Spec. App. 1976), overruled on other grounds, Treece v. State, 547 A.2d 1054 (Md. 1988). Without expert testimony on this factor, a defendant cannot show that they suffered from the mental defect necessary to succeed under any of the three insanity tests. Virginia Virginia primarily follows the M Naghten Rule in deciding whether a person is not guilty by reason of insanity, but does also recognized the irresistible impulse test. See Price v. Commonwealth, 228 Va. 452; Davis v. Commonwealth, 214 Va In addition to placing the burden of proof on the defendant, Virginia also requires that if a defendant intends to raise the issue of his insanity and use the insanity defense he must give the Commonwealth s attorney notice of his intent to use the defense. See Va. Code Ann (2012). The defendant also must give notice of the defendant s intent to present expert testimony to support his claim. Id. This notice must be given in writing at least 60 days before the defendant s trial. Id. If the defendant fails to provide proper notice, the Commonwealth is 43

5 entitled to a continuance, or even a court order barring the defendant from presenting evidence of insanity. Id. Once the Commonwealth receives notice of the defendant s intent to raise the issue of sanity at trial, the Commonwealth may move to have the defendant evaluated by a neutral mental health expert. See Va. Code Ann ; Va. Code Ann The mental health expert shall be a psychiatrist, a clinical psychologist, or a person with a doctorate degree in clinical psychology who has completed forensic evaluation training, and be qualified by specialized training and experience to perform forensic evaluations. Va. Code Ann (2012). The evaluator will prepare a report on the defendant s sanity at the time of the crime and whether the defendant may have a mental disease or defect that rendered him insane. Id. Because the burden is on the defendant to prove by a preponderance of the evidence that he was insane, he is allowed to, and should, have a private evaluation performed by his own expert. However, the Commonwealth s attorney is entitled to any report authored by the defendant s expert. Blevins v. Commonwealth, 11 Va. App. 429 (1990). 44

6 Maryland Unlike Virginia, Maryland has adopted the Model Penal Code or substantial capacity test for determining whether a defendant was insane at the time of the crime. Md. Code Ann., Crim. Proc (2012). Maryland also requires that the defendant give notice to the prosecutor and the court that he intends to invoke the insanity defense. Md. Code Ann., Crim. Proc (2012). At the time of initial hearing, the defendant must file a written plea alleging that at the time the crime was committed the defendant was not criminally responsible by reason of insanity. Id. The defendant can file this plea later for good cause; however, the court cannot enter a verdict of not criminally responsible unless the plea is filed. Id. District of Columbia Similar to Maryland, the District of Columbia has adopted the Model Penal Code or substantial capacity test in determining whether an individual can succeed on an insanity defense. Wilkes v. United States, 631 A.2d 880 (D.C. 1993); Bethea v. United States, 365 A.2d 64 (D.C. 1979). 45

7 Because the insanity defense must be affirmatively presented and established by the defendant, the District also places a notice requirement on defendants attempting to invoke the insanity defense. D.C. Code (2012). District law requires that the defendant file and serve a written notice of his intention to rely on an insanity defense at the time of his initial hearing or within 15 days of the hearing. Id. Like Maryland, the District does allow the notice to be filed at a later date if good cause is shown. Id. Unless the defendant files this notice, the insanity defense cannot be a defense in either the Superior Court of the District of Columbia or the U.S. District Court for the District of Columbia. Id. Conclusion While the insanity defense remains available to defendants in criminal trials, the burdens placed on the defense make success a challenge. Moreover, even if successful, unlike in the movies, the defendant does not necessarily walk away as a free man. Instead, the defendant can be found guilty by reason of insanity, because a finding of insanity is not necessarily an absence of mens rea or inconsistent with general intent crimes. Pouncey v. State, 465 A.2d 475 (Md. 1983). In those cases the defendant, while not being sentenced to prison, may be taken into 46

8 custody and placed in a mental institution until a court is satisfied that the defendant is no longer dangerous. See Va. Code Ann to.16 (2012); Pouncey v. State, 465 A.2d 475. So ultimately, a successful insanity defense can result in a defendant being committed to a mental hospital for longer than they might have sat in prison. 47